IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24696 of 2010(J)
1. ABDUL KAREEM,PANACHIKKAL HOUSE,
... Petitioner
2. DENY PHILIP, PUSHPAMANGALAM,
Vs
1. THE TAHSILDAR, KANAYANNUR TALUK.
... Respondent
2. THE REVENUE DIVISIONAL OFFICER,
For Petitioner :SRI.P.DEEPAK
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :08/09/2010
O R D E R
C. K. ABDUL REHIM, J.
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W.P.(C) No. 24696 of 2010
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Dated this the 8th day of September, 2010
JUDGMENT
Ext.P7 assessment finalized under the provisions of
the Kerala Buildings Tax Act, 1975 is under challenge in this
writ petition.
2. The petitioners are adjacent land owners, who had
constructed buildings in their respective plots, after
obtaining separate building permits from the local authority.
It is stated that cost of construction of the buildings were
met separately by the petitioners. It is also stated that on
completion of construction separate building numbers were
assigned by the local authority.
3. Assessment under the Kerala Building Tax Act was
completed by the 1st respondent on issuing Ext.P3 order,
treating both the buildings as a single unit, on the basis of
the finding that the building is situated as a single unit
W.P.(C) No. 24696/2010 2
without any separation and it is being used as a single unit
by occupying both portions together by the same tenant.
4. Against Ext.P3 assessment, an appeal was filed by
the petitioners, which culminated in Ext.P5 order. The
appellate authority remanded the matter to the 1st
respondent with a direction to take a fresh decision in the
matter, after considering the documents and other records.
Ext.P7 is the consequential order issued by the 1st
respondent. It is mentioned in Ext.P7 that a further
opportunity of hearing was afforded to the petitioners. The
petitioners contended before the 1st respondent that the
buildings are owned separately by the petitioners and the
buildings are constructed on the basis of separate permits
and separate building numbers were allotted to each of the
buildings. It is further contended that there is separate lifts,
separate staircases, separate water meters etc. and the
letting of each building is made separately. But the 1st
respondent observed that on the basis of inspection report
dated 27-8-2008 (which is an inspection conducted before
W.P.(C) No. 24696/2010 3
finalizing the assessment at the first stage) and on the basis
of a decisions of this Court reported in Balan V. Assistant
Collector (1990(3) ILR 1045) and K.G.Muraleedharan V.
District Collector, Ernakulam (O.P. No.5479/2001) the
buildings need be treated as a single unit and hence
completed the assessment again in the joint name of the
petitioners.
5. It is the contention of the petitioners that after
remand of the matter by the appellate authority, the 1st
respondent had not conducted any personal hearing. On the
other hand, when the petitioners appeared on the date of
hearing only scrutiny of the documents were conducted by a
Superintendent attached to the office of the 1st respondent.
It is further alleged that the Superintendent had assured that
the 1st respondent will conduct a fresh hearing. But no such
hearing was conducted and the impugned order is issued
without any verification of the documents and without
conducting any proper enquiry. It is also contended that
Ext.P7 order does not reflect any application of mind, with
W.P.(C) No. 24696/2010 4
respect to the specific contentions raised.
6. In a statement field on behalf of the 1st respondent
it is mentioned that on the basis of directions contained in
the order of the appellate authority, a hearing was
conducted and one of the petitioners appeared. It is further
stated that on a site inspection it was seen that the building
was constructed as a single unit without any barrier in
between. It is a building constructed as a single unit having
no separate wall, is the contention.
7. Learned Government Pleader contended that the
order impugned in this writ petition is appealable and the
petitioners had approached this Court bye-passing such
remedies. Therefore, the very maintainability of the writ
petition itself was challenged.
8. The question to be considered is as to whether the
1st respondent had issued Ext.P7 order with due advertence
to the contention raised by the petitioners on the basis of
the records produce, on a proper application of mind, with
proper bearing to the observations contained in the
W.P.(C) No. 24696/2010 5
appellate order. It is evident that the appellate authority
had remitted the matter for a specific consideration of the
issue based on the contentions raised by the petitioners and
also based on documents which need be verified. But the
impugned order does not reflect any reference to any of the
documents, on the basis of which the matter was remanded.
Hence, I am of the opinion that the impugned order does not
satisfy the requirements of a proper exercise of a quasi
judicial function.
9. It is brought to my notice that the petitioners have
already remitted a sum of Rs.1,61,100/- and further an
amount of Rs.1,20,825/-.
10. Under the above circumstances, the writ petition
is allowed and Ext.P7 assessment is hereby quashed. The 1st
respondent is directed to reconsider the matter afresh, in
view of the remand made by the appellate authority
(Ext.P5). He shall advert to the claim made by the
petitioners with reference to all the documents produced.
Further opportunity of hearing shall be afforded to them
W.P.(C) No. 24696/2010 6
before finalizing the matter. The 1st respondent shall pass a
speaking order meeting all the contentions raised by the
petitioners.
11. A fresh assessment in this regard shall be
completed as early as possible, at any rate within a period of
one month from the date of receipt of a copy of this
judgment.
12. Needless to say that recovery of balance amount
can be proceeded only subject to finalization of assessment
as directed above.
C. K. ABDUL REHIM,
JUDGE.
mn.